JUDGMENT MAULVI ANWARUL HAQ, J.-- This judgment shall decide Crl. Appeals Nos. 133 to 141/2003 as common questions are involved. The appellants in all these cases were a caused of commission of offence under Section 156(1 )(8) Customs Act, 1969, vide cases FIRs Nos. 167 to 175, dated 11.4.2001, respectively, at Police Station Airport, Rawalpindi. They were charged under the said provisions of law. They pleaded not penalty. Prosecution evidence was recorded.
Statements of the accused persons under Section 342, Cr.P.C, were recorded. Defence evidence was produced. Vide judgment dated 30.1.2003, in all these cases, appellants were found guilty and were convicted under Section 156( 1) (8) Customs Act, 1969, and were sentenced to undergo R.I. For one month which had already been undergone and further to pay Rs. 100,000/- as i.e and in default whereof to undergo imprisonment for 2 years.
2. Mr. Athar Minallah, learned counsel for the appellants, in all these cases contends that the entire proceedings and consequently the conviction recorded and sentence imposed in the impugned judgment against his clients are wholly misconceived. According to him his client had not committed any offence. He has elaborated his arguments with reference to the provisions of the Economic Protection Reforms Act, 1992 and legislation following the acquisition of Nuclear Deterrence.
3. Malik Ittat Hussain Awan, learned counsel for the respondent, on the other hand, urges that the appellants have committed act of smu ggling as defined in Section 2(s) punishable under Section 156( 1)(8) of the Customs Act, 1969.
4. Now it is admitted fact that the foreign currency as detailed in the FIRs and impugned judgment was recovered from the appellants while they were about to board a flight to China at Islamabad Airport. Now Section 2(s) of the Customs Act, defines the act of smuggling as follows:-
(s) "smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon,~
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or
(ii) manufacturers of gold or silver or Platinum or palladium or radium or precious stones and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed (fifty thousand rupees) in value; or (i.e) any goods by any route other than route declared under Section ,9 or 10 or from any place other than a customs-station.
And includes an attempt, abetment or connivance of so brining in or taking out of such goods; and all cognate words and expressions shall be construed accordingly.
Now it will be seen that bringing into- or taking out of Pakistan, several goods mentioned in the said Section 2(s), including currency, would constitute smuggling, if said act is being committed in breach of any prohibition or restriction for the time being in force. Now date of occurrence is 11.4.2001.
5. Learned counsel for the appellants draws my attention to Section 4 of the Protection of Economic Reforms Act, 1992. Under this provision of law, enforced on 28.7.1992, all citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons shall be entitled and free to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall pot be required to make a foreign currency declaration at any stage nor shall any one be questioned in regard to the same.
6. Now Section 3 of the said Act, 1992 mandates that provisions of said Act shall have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, Customs Act, 1969, Income Tax Ordinance, 1979 or any other laws for the time being in force.
7. Now on 28.5.1998 Foreign Exchange (Temporary Restrictions) Ordinance 1998, was promulgated.
Now Section 2 of the said Ordinance, 1998, provides as follows:-
(2) Notwithstanding anything contained in the Protection of Economic Reforms Act, 1992 (XII of 1992) but subject to Section 3 it is hereby provided that during the period in which a Proclamation of Emergency under Article 232 of the Constitution of Islamic Republic of Pakistan is in force, the various protections contained in the said Act, or in any other law for the time being in force, or in any agreement or contract, for or in relation to foreign exchange, or the right to bring, hold, sell, withdraw, transfer pay or take out foreign exchange, shall remain suspended.
(1) The Federal Government may be rules make provision for regulating dealings and payments in foreign exchange and such rules may, without prejudice to the generality of the foregoing, empower the State Bank of Pakistan to grant permissions to make or receive payments in foreign exchange, or to permit the conversion of foreign exchange into rupees, either on a case to case basis or on the basis of a classification of various types and categories.
(2) Pending the framing of rules under subsection (1) withdrawals, remittances or payments in foreign exchange shall be made with the prior permission of the State Bank of Pakistan."
8. Now the State Bank of Pakistan issued Notification No. S.R.O. 1017{l)/98, dated 21.7.1998 which is reproduced hereunder:- "Notification No. S.R.O. 1027(l)/98, dated 21st July, 1998.- In exercise of the powers conferred by sub- section (2) of Section 8 of the Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) and in supersession of State Bank of Pakistan Notification No. F.E. 1/91-SB, dated the 26th February, 1991, the State Bank of Pakistan is pleased to permit:-
(a) Authorised Dealers to send out of Pakistan, cheques, drafts or bills of exchange which have been acquired by them in the normal course of their business and within the terms of their authorization.
(b) Any person maintaining an account expressed in a foreign currency, and held under the permission, general or otherwise, granted by the State Bank of Pakistan to take or send out of Pakistan, cheques or drafts drawn on such account.
(c) Any person, other than a person to whom foreign exchange is issued for travelling purposes only, to send out of Pakistan foreign exchange issued to him by an Authorized Dealer.
(d) Any person to take out of Pakistan Foreign Exchange issued to him by an Authorized Dealer in Pakistan and endorsed on his passport.
(e) Any person not ordinarily resident in Pakistan, to take out of Pakistan the unspent amount of foreign currency brought by him into Pakistan provided the period of his continuous stay in Pakistan does not exceed three months; and
(f) Any person to take out of Pakistan U.S. Dollar 10,000 or equivalent thereof in other foreign currencies.
This was followed by repeal of the said Foreign Exchange (Temporary Restrictions) Ordinance, 1998 vide Section 5 of the Foreign Exchange (Temporary Restrictions) Act, 1998 enacted on 26.9.1998.
Now Section 2 of this Act, 1998, reads as follows:- "2. Restriction on withdrawal of foreign exchange etc.- Notwithstanding anything contained in the Protection of Economic Reforms Act, 1992 (XII of 1992) or in any other law for the time being fn force, or in any agreement or contract, it is hereby provided that the right to hold, sell, withdraw, transfer, pay or take out forgoing exchange held by any person in Pakistan as on the twenty-eighth day of May, 1998, (the specified date) without the prior permission of the State Bank of Pakistan shall remain suspended:- Provided that there shall be no legal restriction on any person converting his foreign exchange held as above into rupees at the officially notified rate of exchange.
Explanation:- For the purpose of this section "foreign exchange" means foreign exchange held in a foreign currency account or in such other form as the Federal Government may specify."
Section 3 of the. Said Act, 1998, provides that subject to provisions of the said Act the protection and immunities conferred in terms of Protection Economic Reforms Act, 1992, shall remain un- affected.
9. The said Protection of Economic Reforms Act, 1992, itself was amended vide Protection of Economic Reforms (Amendment) Ordinance, 1999 promulgated on 17.12.199. Now following sub- section (2) was added to Section 4 of the said Act, 1992:-- "(2) Nothing in sub-section (1) shall apply to-
(a) any foreign exchange borrowed under any general permission given by the State Bank of Pakistan under sub-section (1) of Section 4 of the Foreign Exchange Regulations Act, 1947 (VII of 1947).
(b) any payment from abroad for goods exported from Pakistan:-
(c) proceeds of securities issued or sold to non-residents:-
(d) any payment received from abroad for services rendered in, or from, Pakistan;
(e) earnings or profits of the overseas offices or branches of Pakistani firms and companies including banks; and
(f) any foreign exchange purchased from an authorised dealer in Pakistan for any purpose."
10. Now going by the said legislation enacted and promulgated from time to time one may sum up to begin with under Section 4(now Section 4(1)) of said Act of 1992, absolute freedom was granted, inter alia, to take foreign exchange in any form out of Pakistan. Vide Section 2 of Foreign Exchange (Temporary Restrictions) Ordinance, 1998, the said Protection given under Section 4(1) of the said Act, 1992, was suspended. The State Bank of Pakistan on 21.7.1998 permitted taking out of foreign currency from Pakistan in several circumstances stated in clauses (a) to (f) therein. Now Foreign Exchange (Temporary Restrictions) Act, 1998, was promulgated on 26.9.1998 repealing the Foreign Exchange (Temporary Restrictions) Ordinance, 1998. Now Section 2 of the said Act, 1998, provided that right, inter alia, to take out foreign exchange, shall remain suspended but would be subject to prior permission of the State Bank of Pakistan. Now explanation to the said Section 2 defines terms "foreign exchange" to mean foreign exchange, held in foreign currency account or any such other forms as Federal Government may specify. By means of Ordinance (XXI of 1999) sub-section (2) was added in Section 4 of the Act, 1992. Now Section 2 of the said Act, 1998, provided that right, inter alia, to take out foreign exchange, shall remain Suspended but would be subject to prior permission of the State Bank of Pakistan. Now explanation to the said Section 2 defines terms "foregoing exchange" to mean foreign exchange, held in foreign currency account or any such other forms as Federal Government may specify. By means of Ordinance (XXI of 1999) sub-section
(2) was added in Section 4 of the Act, 1992. Now it will be noted that Section 4(1) of the said Act, 1992 remains as it was enacted on 28.7.1992. Sub-sect|on (2) thus constitutes an exception to the general provisions contained in Section 4(1) of the said Act, 1992 meaning that foreign exchange, payments, securities, earnings or profits mentioned in clauses (a) to (f) of sub-section (2) of Section 4 shall not be subject to immunity granted in Section 4(1).
10. Having thus summed up the statutory provisions, it will be observed that restrictions contained in Section 2 of Foreign Exchange (Temporary Restrictions) Act, 1998 would apply to such foreign exchange which is held in foreign currency account or such other forms the Federal Government may specify. This later form has not been so specified and learned counsel for the respondent is unable to point out any statutory provisions including a notification specifying any other form of foreign exchange as having been specified within meaning of said explanation to Section 2 of Foreign Exchange (Temporary Restrictions) Act, 1998. While sub-section (2) of Section 4 specifies foreign exchange which stands excluded from the application of sub-section (1) of Section 4 of the Protection of Economic Reforms Act, 1992.
11. Now coming to the facts of the present cases. The learned Trial Court has held that since foreign exchange recovered from the appellants had not been proved to have been purchased from an Authorised Dealer, act of attempting to take it out of Pakistan constitutes an offence under Section 1 56{ 1)(8) of the Customs Act, 1969. The learned Trial Court has made a reference to the said amendment in Section 4 of the Protection of Economic Reforms Act, 1992 but has failed to note that in fact the effect of the said amendment is that protection provided by sub-section (1) of Section 4 is not applicable to, inter alia, clause (f) of sub-section (2) of said Section 4. On the other hand, it constitutes a restriction in the matter of foreign exchange purchased from an Authorized Dealer in Pakistan. The learned Trial Court has itself held that foreign exchange in question had not been purchased from an Authorised Dealer, It was not case of the prosecution that foreign currency recovered constitute foreign exchange within meaning of explanation to Section 2 of Foreign Exchange (Temporary Restrictions) Act, 1998.
12. Learned Trial Court has also referred to the said Notification S.R.O. 1017(0/98, dated 21.7.1998, already reproduced by me above. This notification has been issued under Foreign Exchange Regulations Act, 1947. Section 3 of the Protection of Economic Reforms Act, 1992 gives effect to its provisions notwithstanding anything contained in said Foreign Exchange Regulations Act, 1947.
Besides, the restrictions have now been enacted by way of statutory provisions in the form of Section 2 of the Foreign Exchange (Temporary Restrictions) Act, 1998 and said sub-section (2) of Section 4 of the Protection of Economic Reforms Act, 1992.
13. For all that has been discussed above, the impugned judgment, conviction and sentence passed by the learned Special Judge (Customs) Rawalpindi/lslamabad, in all these cases cannot be sustained. All the criminal appeals are, accordingly, allowed and the impugned, convictions and sentences passed by the learned Trial Court are set aside.